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ISCR Case 07-06408.a1 — CASE

ISCR Case 07-06408.a1denied

Case Headnote

ISCR Case No. 07-06408.a1

Jun 6, 2008· Hon. Jean E. Smallin· appeal

Summary

A security clearance applicant, representing herself, was denied under Guideline G (Alcohol Consumption) due to two DUI convictions. The first conviction occurred in 1999, followed by a second in 2007, establishing a pattern of alcohol-related misconduct that raised security concerns.

The judge determined there was substantial evidence to support the government's concerns regarding the applicant's alcohol consumption. Despite the applicant's arguments, the judge found no error in the initial findings or the decision to deny.

Ultimately, the applicant failed to provide sufficient mitigating evidence to overcome the established security concerns. Consequently, the security clearance was denied.

Conditions Referenced

Disqualifying

G.2.araisedAlcohol-related Offenses

Mitigating

G.3rejectedPositive Changes in BehaviorThe judge found the mitigating evidence insufficient to overcome the disqualifying conduct.

Key Rule Quoted

“Once the government presents evidence raising security concerns, the burden shifts to the applicant to establish mitigation.”

Procedural Posture

SOR issuedOct 1, 2007
Answer filed—
Hearing heldFeb 26, 2008
Decision dateJun 6, 2008

Cite For

Denial of Security Clearance Due to Multiple DUI Convictions Under Guideline G
Insufficient Mitigating Evidence in the Context of Alcohol-related Offenses
Burden of Proof Shifts to Applicant After Government Raises Security Concerns

Editorial summary generated for research. Not legal advice; not a prediction. Verify against the full decision before relying on any quoted language.

Appeal at a glance· Full written decision

Affirmed

The appeal involved an applicant who was denied a security clearance due to two convictions for driving under the influence of alcohol. The applicant argued that the Judge's decision was arbitrary and that her alcohol consumption did not present a problem. The Board affirmed the Judge's decision, finding it supported by substantial evidence and not arbitrary or capricious.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowMatthew E. Malone — denied the clearance

Decided ona hearing

Guidelines belowGuideline G

What the Board reviewed

Decision arbitrary, capricious, or contrary to law — raised by the applicantRejected
Applicant argued that the Judge's adverse security clearance decision under Guideline G is arbitrary, capricious, or contrary to law.

Error found, but harmless. The Board agreed the judge made a mistake but affirmed anyway, because it did not change the outcome.

Why the Board ruled this way

The Board concluded that the Judge’s findings were based on substantial evidence and that any errors were harmless, affirming the adverse decision.

Standard of review applied

Substantial-evidence reviewArbitrary-and-capricious reviewNo de-novo re-decision

Appeal Board panel

Michael D. Hipple
Jean E. Smallin
William S. Fields

Descriptive structured reading of this decided, public Appeal Board decision — what the case says, not a prediction or advice.

Full decision

The complete, official text — footnotes and signatures included — is in the original PDF.

Decision text, by section

DEFENSE OFFICE OF HEARINGS AND APPEALS

APPEAL

SYNOPSIS

KEYWORD: Guideline G DIGEST: The Judge found that Applicant has been convicted twice of driving under the influence of alcohol, in 1999 and 2007. The Judge’s findings of security significance are sustainable. Adverse decision affirmed. CASENO: 07-06408.a1 DATE: 06/06/2008 DATE: June 6, 2008 In Re: -------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 07-06408

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT James B. Norman, Esq., Chief Department Counsel FOR APPLICANT Pro Se The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security clearance. On October 1, 2007, DOHA issued a statement of reasons (SOR) advising Applicant of the basis for that decision—security concerns raised under Guideline G (Alcohol Consumption) of Decision at 2-3. Applicant makes other assertions of error based upon new evidence in the form of Applicant’s statements in her brief as to aspects of her work situation. The Board may not consider this new evidence on appeal. Directive ¶ E3.1.29. Its submission does not demonstrate error on the part of the Judge. See, e.g., ISCR Case No. 06-00184 at 2 (App. Bd. Jul. 24, 2007). Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested a hearing. On February 26, 2008, after the hearing, Administrative Judge Matthew E. Malone denied Applicant’s request for a security clearance. Applicant timely appealed pursuant to the Directive ¶¶ E3.1.28 and E3.1.30. Applicant raised the following issues on appeal: whether the Judge’s findings are based on substantial evidence; and whether the Judge’s adverse security clearance decision under Guideline G is arbitrary, capricious, or contrary to law. The Judge found Applicant had consumed alcohol, at times in excess and to the point of intoxication, from at least 1999 to at least June 2007. In 1999 Applicant was charged with driving under the influence of alcohol with a blood alcohol content (BAC) of at least .10%. She was found guilty of the offense, fined, and her driving privileges were revoked for one year. In 2007 Applicant was charged with driving under the influence of alcohol with a BAC of .21%. She was convicted and sentenced to 33 days in jail, with 30 days suspended conditioned on five years good behavior, completion of the Alcohol Safety Action Program (ASAP), and payment of her fines and costs.1

Applicant argues that the Judge’s adverse clearance decision should be reversed because the Judge’s findings contain multiple errors. Applicant also argues that her alcohol consumption does not present a problem and that she would not have driven in an intoxicated state in 2007 had someone told her that it could result the revocation of her security clearance. Applicant’s arguments do not demonstrate that the Judge erred. The Board’s review of a Judge’s findings is limited to determining if they are supported by substantial evidence—such relevant evidence as a reasonable mind might accept as adequate to support such a conclusion in light of all the contrary evidence in the record. Directive ¶ E3.1.32.1. “This is something less than the weight of the evidence, and the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency’s finding from being supported by substantial evidence.” Consolo v. Federal Maritime Comm’n, 383 U.S. 607, 620, (1966). After reviewing the record, the Board concludes that the Judge’s findings are based on substantial evidence, or constitute reasonable inferences that could be drawn from the record. To For example, Applicant argues that the Judge erred in finding that she was hired in 2004, when in fact she was hired in 2003, and erred in finding that she attended karaoke events weekly, when in fact she attends them once or twice a month. Decision at 6. the extent that there is error, it is harmless in that it would not change the outcome of the case.3 Considering the record evidence as a whole, the Judge’s material findings of security concern are sustainable. See, e.g., ISCR Case No. 06-21025 at 2 (App. Bd. Oct. 9, 2007). Once the government presents evidence raising security concerns, the burden shifts to the applicant to establish mitigation. Directive ¶ E3.1.15. The presence of some mitigating evidence does not alone compel the Judge to make a favorable clearance decision. As the trier of fact, the Judge has to weigh the evidence as a whole and decide whether the favorable evidence outweighs the unfavorable evidence, or vice versa. An applicant’s disagreement with the Judge’s weighing of the evidence, or an ability to argue for a different interpretation of the evidence, is not sufficient to demonstrate the Judge weighed the evidence or reached conclusions in a manner that is arbitrary, capricious, or contrary to law. A review of the record indicates that the Judge weighed the mitigating evidence offered by Applicant against the length and seriousness of the disqualifying conduct and considered the possible application of relevant conditions and factors. He reasonably explained why the evidence which the Applicant had presented in mitigation was insufficient to overcome the government’s security concerns. The Board does not review a case de novo. The favorable record evidence cited by Applicant is not sufficient to demonstrate the Judge’s decision is arbitrary, capricious, or contrary to law. See, e.g., ISCR Case No. 06-11172 at 2 (App. Bd. Sep. 4, 2007). The Judge examined the relevant data and articulated a satisfactory explanation for his decision, “including a ‘rational connection between the facts found and the choice made.’” Motor Vehicle Mfrs. Ass’n of the United States v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983) (quoting Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168 (1962). Therefore, the Judge’s conclusion that “it is not clearly consistent with the national interest to grant Applicant eligibility for a security clearance”4 is sustainable. See Department of the Navy v. Egan, 484 U.S. 518 (1988).

ORDER

The decision of the Judge denying Applicant a security clearance is AFFIRMED. Signed: Michael D. Hipple Michael D. Hipple Administrative Judge Member, Appeal Board Signed: Jean E. Smallin Jean E. Smallin Administrative Judge Member, Appeal Board Signed: William S. Fields William S. Fields Administrative Judge Member, Appeal Board